SUBODH KUMAR ROY Vs. MD. HYDER ALI

JUDGEMENT

(1.) The plaintiff has brought this revision under section 115 Code of Civil Procedure from the order dated 7.4.86 passed by A.H. Laskar, Assistant District Judge, Sonitpur, Tezpur in Misc. Appeal No. 10/85 confirming the order dated 30.5.85 passed by Shri T.C. Jain Munsiff No. 2, Tezpur, in Misc. Case No. 96/84, refusing to restore T.S. 9/78 to a pending file.

(2.) The plaintiff filed the suit for declaration of his right and title and for ejectment of the defendant from a plot of land measuring 8' 11" x 2' 9". The defendant was contesting the suit. The plaintiff had examined one witness after which the suit was adjourned to 12.1.84 for examination of plaintiff's other witnesses. On that day the plaintiff and his witnesses were absent but the plaintiff's counsel was present before the Court. At the plaintiff himself and his witnesses were not present the trial court passed the following order :

(3.) Thereafter, the plaintiff filed an application under order 9 Rule 9 Code of Civil Procedure for restoration of the suit. The grounds stated in the application was that he could not be present on 12.1.84 as he was ill and bed ridden. A medical certificate was attached to the application. The trial court held that the dismissal order which it had passed on 12.1.84 would fall under Order 17 Rule 3(a) Code of Civil Procedure and that, as such, it was an appealable order. Being of this view he held that the application under Order 9 Rule Code of Civil Procedure to restore the suit was not maintainable. Accordingly, the trial court rejected the application for restoring the suit. The order was confirmed by the appellate court as stated above. Hence this revision.